No. 19-0673

In the Supreme Court of Texas

HOUSECANARY, INC. F/K/A CANARY ANALYTICS, INC., Petitioner,

v.

TITLE SOURCE, INC., REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, AND HOUSTON FORWARD TIMES,

Respondents.

On Petition for Review from the Fourth Court of Appeals at San Antonio

MEDIA INTERVENOR RESPONDENTS’ BRIEF ON THE MERITS

Charles L. Babcock JACKSON WALKER L.L.P. 1401 McKinney St., Suite 1900 Houston, Texas 77010 (713) 752-4210 (713) 742-4221 – Fax

(additional counsel listed on inside cover)

Joshua A. Romero JACKSON WALKER L.L.P. 100 Congress Ave., Suite 1100 Austin, Texas 78701 (512) 236-2035 (512) 391-2189 – Fax

FILED19-06732/18/2020 8:33 PMtex-40942958SUPREME COURT OF TEXASBLAKE A. HAWTHORNE, CLERK

Amanda N. Crouch JACKSON WALKER L.L.P. 112 E. Pecan Street, Suite 2400 San Antonio, Texas 78205 (210) 978-7784 (210) 242-4684 – Fax

ATTORNEYS FOR THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS

J. Carl Cecere CECERE PC 6035 McCommas Blvd. Dallas, Texas 75206 (469) 600-9455

ATTORNEY FOR THE HOUSTON FORWARD TIMES

IDENTITY OF PARTIES AND COUNSEL

A. Trial and Appellate Counsel for HouseCanary, Inc. f/k/a Canary Analytics, Inc., Petitioner

David M. Gunn BECK REDDEN LLP 1221 McKinney, Suite 4500 Houston, Texas Wallace B. Jefferson ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701 Thomas R. Phillips BAKER BOTTS L.L.P. 98 San Jacinto Blvd., Suite 1500 Austin, Texas 78701

Max L. Tribble, Jr Matthew C. Behncke Rocco Magni Bryce T. Barcelo Jonathan J. Ross Joseph S. Grinstein SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002-5096 Ricard Cedillo DAVIS, CEDILLO & MENDOZA, INC. 755 E. Mulberry, Suite 500 San Antonio, Texas 78212

B. Trial and Appellate Counsel for Title Source, Inc., Respondent

Catherine M. Stone LANGLEY & BANACK, INC. 745 E. Mulberry Ave., Suite 700 San Antonio, Texas 78212 Dale Wainwright GREENBERG TRAURIG, LLP 300 West 6th Street, Suite 2050 Austin, Texas 78701 Helgi C. Walker GIBSON, DUNN & CRUTCHER, LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5306

David M. Prichard PRICHARD YOUNG 10101 Reunion Place, Suite 600 San Antonio, Texas 78216 Veronica S. Lewis Allyson N. Ho Andrew P. LeGrand GIBSON, DUNN & CRUTCHER, LLP 2100 McKinney Avenue Dallas, Texas 75201-6912

ii

Peter S. Wahby Stephanie R. Smiley Karl G. Dial Samuel G. Davison Allison M. Stewart GREENBERG TRAURIG, LLP 2200 Ross Avenue, Suite 5200 Dallas, Texas 75201 Jeffrey B. Morganroth MORGANROTH & MORGANROTH, PLLC 344 N. Old Woodward Ave., Suite 200 Birmingham, MI 48009

Randy M. Mastro GIBSON, DUNN & CRUTCHER, LLP 200 Park Avenue New York, NY 10166-0193 Manuel Pelaez-Prada FLORES & PELAEZ PRADA, PLLC 2221 IH 10 West, Suite 1206 San Antonio, Texas 78257

C. Trial and Appellate Counsel for Reporters Committee for Freedom of the Press, Respondent

Joshua A. Romero JACKSON WALKER L.L.P. 100 Congress Ave., Suite 1100 Austin, Texas 78701

Amanda N. Crouch JACKSON WALKER L.L.P. 112 E. Pecan Street, Suite 2400 San Antonio, Texas 78205

Charles L. Babcock JACKSON WALKER L.L.P. 1401 McKinney Street, Suite 1900 Houston, Texas 77010

D. Trial and Appellate Counsel for Houston Forward Times, Respondent

J. Carl Cecere CECERE PC 6035 McCommas Blvd Dallas, Texas 75206

.

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TABLE OF CONTENTS

STATEMENT OF THE CASE ................................................................... 1

RESPONSE TO STATEMENT OF JURISDICTION ............................... 3

ISSUE PRESENTED ................................................................................. 4

STATEMENT OF FACTS .......................................................................... 4

A. HouseCanary and Title Source Enter Into a Stipulated Protective Order. .......................................... 4

B. HouseCanary Fails to Follow the SPO’s Provisions to Protect the Confidentiality of its Purported Trade Secrets at Trial. .................................. 7

C. HouseCanary Files a Post-Trial Retroactive Motion to Seal, Which the Trial Court Initially Denied. ............................................................................. 9

D. The Media Intervenors Intervene. ............................. 101

E. HouseCanary Seeks “Reconsideration,” Asserting New Arguments for Retroactive Sealing of a Smaller Number of Exhibits. ................... 11

F. The Trial Court Orders Certain Trial Exhibits Sealed and Prohibits Dissemination of Sealed Materials. .................................................................... 133

G. The Court of Appeals Reverses the Sealing Order. ........................................................................... 144

SUMMARY OF ARGUMENT .................................................................. 17

ARGUMENT ............................................................................................. 19

I. The Court of Appeals Correctly Held that the Trial Court Abused Its Discretion in Entering the Sealing Order. ...................................................................................... 19

iv

A. The Court of Appeals Correctly Held that the SPO Incorporated Rule 76a’s Procedural and Substantive Sealing Standards, Which HouseCanary did not follow. ........................................ 19

B. HouseCanary Cannot Satisfy Rule 76a’s Sealing Standards. ..................................................................... 23

C. Nothing in TUTSA Supplants Rule 76a. ..................... 29

II. TUTSA Neither Supersedes Nor Supplants the Presumption of Openness Required By the First Amendment. ........................................................................... 35

A. The Right of Access Applies to Civil Proceedings. ...... 37

B. The Right of Access Applies to Exhibits In Evidence. ....................................................................... 40

C. Trade Secrets Are Not Automatically Excluded from the Right of Access Requirement. ....................... 44

D. HouseCanary Could Have (But Failed to) Protect Its Trade Secrets In a Manner that Comports with the First Amendment Right to Access By Complying with Rule 76a and the SPO. ...................... 47

PRAYER .................................................................................................... 49

CERTIFICATE OF COMPLIANCE ........................................................ 51

CERTIFICATE OF SERVICE .................................................................. 52

v

TABLE OF AUTHORITIES

Page(s)

Cases

In re Associated Press, 172 F. App’x 1 (4th Cir. 2006) ............................................................. 41

Associated Press v. U.S. Dist. Court, 705 F.2d 1143 (9th Cir. 1983) .............................................................. 42

Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544 (7th Cir. 2002) ................................................................ 45

Belo Broad. Corp. v. Clark, 654 F.2d 423 (5th Cir. 1981) ................................................................ 41

Brown & Williamson Tobacco Corp. v. Fed. Trade Comm’n, 710 F.2d 1165 (6th Cir. 1983) .............................................................. 38

Chandler v. Hyundai Motor Co., 844 S.W.2d 882 (Tex. App.—Houston [1st Dist.] 1992, no writ) ...................................................................................................... 22

Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir. 1986) ............................................................... 32

In re Cont’l Ill. Sec. Litig., 732 F.2d 1302 (7th Cir. 1984) ........................................................ 38, 41

Courthouse News Serv. v. Planet, 750 F.3d 776 (9th Cir. 2014) ................................................................ 37

Craig v. Harney, 331 U.S. 367 (1947) .............................................................................. 36

Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655 (Tex. 1992) ....................................................... 1, 43, 49

vi

Dickey’s Barbecue Pit, Inc. v. Neighbors, No. 4:14-CV-484, 2015 WL 13466613 (E.D. Tex. June 5, 2015) ..................................................................................................... 26

Doe v. Santa Fe Indep. Sch. Dist., 933 F. Supp. 647 (S.D. Tex. 1996) ....................................................... 40

Doe v. Stegall, 653 F.2d 180 (5th Cir. Unit A 1981).............................................. 39, 40

Elbertson v. Chevron, U.S.A., Inc., No. H10-0153, 2010 WL 4642963 (S.D. Tex. Nov. 9, 2010) ................ 26

Envtl. Procedures, Inc. v. Guidry, 282 S.W.3d 602 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) ........................................................................................... 24

Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520 (Tex. 1998) ........................................................... 23, 30

Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) ............................................................ 31, 34, 36, 43

In re Guantanamo Bay Detainee Litig., 624 F. Supp.2d 27 (D.D.C. 2009) ......................................................... 39

Lance v. Robinson, 543 S.W.3d 723 (Tex. 2018); Mem. Op. ......................................... 22, 46

Littlejohn v. BIC Corp., 851 F.2d 673 (3d Cir. 1988) ..................................................... 25, 26, 37

In re M-I L.L.C., 505 S.W.3d 569 (Tex. 2016) ........................................................... 45, 46

N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286 (2d Cir. 2012) ................................................................. 37

Matter of N.Y. Times Co., 828 F.2d 110 (2d Cir. 1987) ................................................................. 41

vii

Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (1978) .............................................................................. 36

Press–Enter. Co. v. Superior Court, 478 U.S. 1 (1986) (Press-Enterprise II) .............................................. 42

Press-Enter. Co. v. Superior Court, 464 U.S. 501 (1984) (Press-Enterprise I) ................................ 36, 42, 44

Publicker Indus., Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984) ............................................................... 37

Rambus, Inc. v. Infineon Techs. AG, No. Civ. A. 3:00CV524, 2005 WL 1081337 (E.D. Va. May 6, 2005) ................................................................................................. 26

In re Reporters Committee for Freedom of the Press, 773 F.2d 1325 (D.C. Cir. 1985) ...................................................... 38, 39

Richmond Newspapers v. Va., 448 U.S. 555 (1980) ............................................................ 37, 39, 40, 42

Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589 (6th Cir. 2016) ................................................................ 45

Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) ................................................................................ 38

Stark v. Morgan, 602 S.W.2d 298 (Tex. App.—Dallas 1980, writ ref’d n.r.e.) ........ 46, 47

Stroud Oil Props., Inc. v. Henderson, No. 2-03-003-CV, 2003 WL 21404820 (Tex. App.—Fort Worth June 19, 2003, pet. denied) (mem. op.) .................................... 24

Sullo & Bobbitt, P.L.L.C. v. Milner, 765 F.3d 388 (5th Cir. 2014) (per curiam) .......................................... 36

Tex. Appleseed v. Spring Branch Indep. Sch. Dist., No. 01-11-00605-CV, 2012 WL 1379649 (Tex. App.—Houston [1st Dist.] 2012, no pet.) ........................................................ 40

viii

Title Source, Inc. v. HouseCanary, Inc., Nos. 04-18-00509-CV, 04-18-00844-CV, 2019 WL 2996974 (Tex. App.—San Antonio July 10, 2019, pet. filed) .................... passim

United States v. Antar, 38 F.3d 1348 (3d Cir. 1994) ................................................................. 42

United States v. Mitchell, 551 F.2d 1252 (D.C. Cir. 1976) ............................................................ 36

Weiss v. Allstate Ins. Co., No. 06-3774, 2007 WL 2377119 (E.D. La. Aug. 16, 2007) .................. 26

Statutes

TEX. CIV. PRAC. & REM. CODE ANN. § 134A.001 et seq. ........................... 14

TEX. CIV. PRAC. & REM. CODE ANN. § 134A.007(c) ................................... 30

TEX. GOV’T CODE ANN. § 22.001(a) ............................................................. 3

Rules

TEX. R. CIV. P. 166b ................................................................................... 30

TEX. R. CIV. P. 76a(1) .............................................................. 10, 23, 24, 48

TEX. R. CIV. P. 76a(2) ................................................................................ 48

TEX. R. CIV. P. 76a(3) ................................................................................ 23

TEX. R. CIV. P. 76a(4) ................................................................................ 23

TEX. R. CIV. P. 76a(5) ................................................................................ 23

TEX. R. CIV. P. 192.1–192.7, 193.5, and 195.1–195.7 .............................. 30

TEX. R. CIV. P. 192.6 ........................................................................ 5, 30, 31

Other Authorities

United States Constitution First Amendment ................................ passim

ix

Texas Constitution ............................................................................. 18, 35

Data Startup Claiming Trade Secrets Theft, Bloomberg, March 18, 2018, <https://tinyurl.com/y79tesa2> .................................. 7

Detroit Free Press, March 15, 2018 ........................................................... 6

Elle Mertens, Inside 2018’s Largest Trade Secrets Damages Award ..................................................................................................... 6

HousingWire, April 3, 2018, https://www.housingwire.com/articles/43007-united-wholesale-ceo-declares-huge-housecanary-settlement-is-good-for-all-of-us/; .................................................................................. 7

J.J. Velasquez, Local Tech Firm Wins $706M in Legal Fight with Quicken Loans Affiliate, Rivard Report, March 15, 2018, <https://tinyurl.com/y8nuw2nd> ................................................. 7

LLOYD DOGGETT & MICHAEL J. MUCCHETTI, Public Access to Public Courts: Discouraging Secrecy in the Public Interest, 69 TEX. L. REV. 643, 648–52 (Feb. 1991) .............................. 47

MARK J. OBERTI, JOSEPH Y. AMHAD & HANNA NORVELL, 2017 Update: Suing or Defending the Departing Texas Employee .............................................................................................. 32

Peter Rudegeair, Startup Awarded $706 Million In Legal Tussle With Quicken Loans Affiliate, The Wall St. J, March 16, 2018 ....................................................................................... 6

Real Estate Valuation Client, TEX. LAWYER .............................................. 6

STATEMENT OF THE CASE

Nature of the Case: This is an interlocutory appeal of an order retroactively sealing trial exhibits in a trade-secrets case after (i) Petitioner HouseCanary failed to abide by the requirements for sealing documents pursuant to the parties’ agreed protective order; and (ii) the exhibits were introduced into evidence and discussed in open court during trial.

Trial Court: 73rd Judicial District Court of Bexar County, Texas; Honorable David A. Canales.

Trial Court’s Disposition: The trial court initially denied HouseCanary’s post-trial motion to retroactively seal certain trial exhibits. (4CR8806, 9270). The court then granted HouseCanary’s motion to reconsider and ordered some of those exhibits sealed, notwithstanding HouseCanary’s failure to comply with the requirements of the parties’ agreed protective order. (4CR 9430).

Court of Appeals: Court of Appeals’ Opinion:

Fourth Court of Appeals, San Antonio.

Opinion by Justice Martinez, joined by Justice Rios; concurring opinion by Chief Justice Marion. Title Source, Inc. v. HouseCanary, Inc., Nos. 04-18-00509-CV, 04-18-00844-CV, 2019 WL 2996974 (Tex. App.—San Antonio July 10, 2019, pet. filed) (“Mem. Op.”).

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Court of Appeals’ Disposition:

The Fourth Court reversed. Justice Martinez, writing for the majority, held that the trial court erred in sealing the exhibits when HouseCanary knowingly failed to follow the requirements of the parties’ agreed protective order. Chief Justice Marion concurred in the judgment, writing separately to explain her view that the trial court also erred in retroactively sealing exhibits already used at trial and publicly disclosed in open court.

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RESPONSE TO STATEMENT OF JURISDICTION

This case fails to present any question of law important to the

jurisprudence of the state. See TEX. GOV’T CODE § 22.001(a). Contrary to

HouseCanary’s assertion (Pet. Br. 13, 23, 26), the Fourth Court’s opinion

does not turn on the application of the Texas Uniform Trade Secret Act’s

(“TUTSA”) “preempt[ion]” provision, nor does it illustrate any “conflict”

between Texas Rule of Civil Procedure 76a (“Rule 76a”) and TUTSA. The

court of appeals’ decision did not turn on the interpretation of TUTSA,

its interaction with Rule 76a, or on any statutory provision.

Instead, the Fourth Court based its decision on HouseCanary’s

undisputed failure to comply with the provisions of the protective order

to which it had agreed to be bound. The Fourth Court noted that the

parties had agreed in the protective order that Rule 76a would apply to

the sealing of records, including the exhibits at issue. It is undisputed

that HouseCanary failed to follow those agreed-upon procedures. The

Fourth Court thus held that the trial court abused its discretion “when it

sealed records without applying the Rule 76a standards and procedures

as agreed and ordered in the [Stipulated Protective Order].” See Mem.

Op. Because the outcome of this dispute turns on facts unique to this

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case and to these parties, including the unique language of the parties’

Stipulated Protective Order, this Court’s review is unwarranted.

ISSUE PRESENTED

Did the Fourth Court of Appeals properly conclude that a party

cannot retroactively seal trial exhibits after they have been entered into

evidence and discussed in open court, when the movant fails to comply

with the requirements for sealing those exhibits set forth in a stipulated

protective order agreed to by the parties and entered by the trial court?

STATEMENT OF FACTS

A. HouseCanary and Title Source Enter Into a Stipulated Protective Order.

This appeal arises from a dispute between two major players in the

residential valuation business: Amrock (formerly Title Source, Inc.), a

title insurance and valuation company, and HouseCanary, Inc.

(“HouseCanary”), a startup real estate analytics firm. (1CR26, 31). The

two companies entered into a failed transaction for the development of a

new type of software to perform housing appraisals and predict housing

trends. (1CR26). Amrock accused HouseCanary of failing to deliver the

promised software. (1CR26-27). HouseCanary accused Amrock of

5

misappropriating trade secrets it shared with Amrock during discussions

about the proposed software. (1CR36-43).

Before trial, the parties agreed to, and the trial court entered, a

Stipulated Protective Order (the “SPO”) pursuant to Texas Rule of Civil

Procedure 192.6 and TUTSA. The SPO “remain[ed] in effect through the

conclusion of [the] litigation.” (1CR253, 356-74).

The SPO contained specific provisions about the protection of

confidential materials at trial. Under the SPO, a party seeking to keep

confidential any sensitive materials used during trial must first obtain

“a court order authorizing the sealing of the specific Protected Material

at issue.” (1CR272). Specifically, the SPO required the movant to file a

motion to seal the information pursuant to Rule 76a within five business

days after the materials were filed. (1CR273). If a party failed to file such

a motion, the SPO offered no protection for any information that

“becomes part of the public domain,” including information that

“becom[es] part of the public record through trial or otherwise.”

(1CR260).

In March 2018, a Bexar County jury sided with HouseCanary and

awarded the company $706.2 million in damages—by far the largest

6

verdict in Bexar County history. (4CR9435). It was also the largest

verdict in 2018 in any trade-secret case in the United States—indeed, in

any case anywhere in the world.1 The mammoth verdict, and the very

public seven-week trial, garnered national attention. The story of that

verdict has received in-depth press coverage across Texas2, as well as in

Michigan, where Amrock3 is located. It has been covered by national

news outlets, including The Wall Street Journal, Bloomberg, and others.4

The verdict continues to be closely followed by experts in the intellectual

1Elle Mertens, Inside 2018’s Largest Trade Secrets Damages Award, MANAGING

INTELLECTUAL PROP., April 12, 2018, <https://tinyurl.com/y7bsmlph> (quoting experts who noted that trade-secret cases in the verdict tend to have much higher damages than anywhere else in the world). 2Kristen Mosbrucker, Inside the case in which SA jurors awarded $706M to a tech startup, SAN ANTONIO BUS. J., April 4, 2018, <https://tinyurl.com/y8mxzf5v>; Scott Graham, Susman Team Wins $706.2M Trade Secret Verdict for Real Estate Valuation Client, TEX. LAWYER, March 15, 2018, <https://tinyurl.com/yalvhv4h>; Patrick Danner, San Antonio company HouseCanary wins $700M jury verdict, San Antonio Express-News, March 15, 2018, <https://tinyurl.com/yd9tqsyp>. 3Dustin Walsh, Payout in Gilbert title company case likely to be far less than jury’s $706 million, Crain’s Detroit Bus., March 16, 2018, <https://tinyurl.com/y9l7sv9q>; JC Reindl, Quicken Loans affiliate hit with $706M judgment from Texas jury, Detroit Free Press, March 15, 2018, <https://tinyurl.com/y76gjrxo>. 4Peter Rudegeair, Startup Awarded $706 Million In Legal Tussle With Quicken Loans Affiliate, The Wall St. J, March 16, 2018, <https://tinyurl.com/y8pkbcym>; Erik Larson, Quicken Loans Is Sued by Data Startup Claiming Trade Secrets Theft, Bloomberg, March 18, 2018, <https://tinyurl.com/y79tesa2>; Laurel Caulkins, Amrock Ordered to Pay $706 Million in Trade Secrets Case, Bloomberg /Quint, March 17, 2018, <https://tinyurl.com/y7pox56w>; Cara Salvatore, Jury Awards $706M Over Appraisal App Secrets Theft, Law360, March 15, 2018, <https://tinyurl.com/y8lou2xe>; HouseCanary Awarded $706.2 Million Verdict Against Amrock, RISMedia, <https://tinyurl.com/y7jfswty>; J.J. Velasquez, Local Tech Firm Wins $706M in Legal Fight with Quicken Loans Affiliate, Rivard Report, March 15, 2018, <https://tinyurl.com/y8nuw2nd>.

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property, mortgage finance, and startup communities and has also

captured the attention of specialty news outlets around the country.5

B. HouseCanary Fails to Follow the SPO’s Provisions to Protect the Confidentiality of its Purported Trade Secrets at Trial.

Throughout the highly publicized seven-week jury trial, during

which HouseCanary alleged that its “core” trade secrets were at stake,

HouseCanary did little to protect its alleged trade secrets from

disclosure. Both parties successfully moved to seal certain exhibits

reflecting their computer source code pursuant to the SPO’s provisions.

(See, e.g., 32RR128.) It is undisputed, however, that the eight exhibits

that are the subject of the sealing order at issue and which HouseCanary

alleges contain its “core” trade secrets—PX49, PX64, DX95, DX342,

DX561, DX759, DX800 & DX835 (the “Exhibits”)—were entered into

evidence and discussed in open court, either by HouseCanary itself or

without objection from HouseCanary. (4CR9352-55). HouseCanary

5Martins, supra note 1; Ben Lane, Amrock ordered to pay $706 million for stealing trade secrets from HouseCanary, HousingWire, March 15, 2018, <https://tinyurl.com/yammcrqc>; Jacob Gaffney, United Wholesale CEO declares huge HouseCanary settlement is “good for all of us”, HousingWire, April 3, 2018,https://www.housingwire.com/articles/43007-united-wholesale-ceo-declares-huge-housecanary-settlement-is-good-for-all-of-us/; Emma Hinchliffe, HouseCanary wins $706M after getting sued by Quicken Loans affiliate, Inman, March 15, 2017, <https://tinyurl.com/yb5jp4t6>;; Radhika Ojha, HouseCanary Wins $706.2 Mn Verdict Against AMROCK Inc., DSnews, <https://tinyurl.com/y7futbsb>.

8

affirmatively relied on some of these exhibits to support its claims at

trial, including PX64, an email attaching HouseCanary’s “data

dictionary,” which HouseCanary referenced in its opening statement and

discussed repeatedly through several of its witnesses in open court.

(4CR9354). The Exhibits also included DX759—a document describing

HouseCanary’s “similarity score” and “valuation suitability score”—

which both parties repeatedly discussed throughout trial. (Id. at 3).

Several of the Exhibits were also displayed during witnesses’

questioning, at greatly magnified scale, on the court’s projection system,

within full view of the judge, jury, courtroom personnel, and the gallery.

(4CR9341). And the Exhibits were freely referenced and discussed by all

parties in open court. (4CR9352-55). At no time during the seven-week

trial did HouseCanary ask that these Exhibits be sealed pursuant to the

SPO or request that the courtroom be closed during portions of the trial

when the Exhibits were shown or discussed. Nor did the trial court enter

any order that modified the SPO or “quarantined” the Exhibits. (Pet. Br.

20).

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C. HouseCanary Files a Post-Trial Retroactive Motion to Seal, Which the Trial Court Initially Denied.

More than a month after the jury’s verdict, HouseCanary made its

first attempt to shield its supposedly “core” trade secrets by moving under

Rule 76a to retroactively seal the eight Exhibits, along with 22 other trial

exhibits that included “HouseCanary Financials,” “Data Vendor

Contracts,” and a “Presentation to [the] Board of Directors.” (4CR8806-

10).

In its motion, HouseCanary admitted that all the exhibits it sought

to retroactively seal, including those it alleged contained trade secrets,

were subject to Rule 76a’s presumption that court records are “open to

the general public.” (4CR8810). HouseCanary did not object to the

application of Rule 76a, nor did it suggest that any source of law might

supplant Rule 76a. HouseCanary also did little to explain what trade

secrets it claimed were contained within the exhibits it sought to seal,

relying instead on generalized assertions that they “reflect

HouseCanary’s data dictionary” and unspecified “information about

HouseCanary’s analytics, including its similarity score and complexity

score models.” (4CR8809). And HouseCanary made no attempt to show

that any of the exhibits contained sufficient detail to actually risk the

10

disclosure of its alleged trade secrets; HouseCanary simply asserted that

some unspecified portions of some unspecified number of the more than

30 exhibits it sought to seal were designated “confidential.” (4CR8809).

HouseCanary’s motion also failed to explain why the drastic

remedy of a sealing order was necessary and why no “less restrictive

means than sealing”—such as redaction—would be sufficient. TEX. R.

CIV. P. 76a(1). Perhaps most importantly, HouseCanary made no effort

to explain why sealing was appropriate after the exhibits had already

been publicly disclosed in open court during the trial.

D. The Media Intervenors Intervene.

When HouseCanary filed its Rule 76a motion to seal, the Reporters

Committee for Freedom of the Press and the Houston Forward Times

(collectively, the “Media Intervenors”) intervened. (4CR8949). The

Reporters Committee for Freedom of the Press is an unincorporated

501(c)(3) nonprofit association dedicated to assisting journalists since

1970. Reporters Committee attorneys provide pro bono legal

representation, amicus curiae support, and other legal resources to

protect First Amendment freedoms, court access, and the newsgathering

rights of journalists. Houston Forward Times is the South’s largest

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Black-owned and independently published newspaper. It is dedicated to

First Amendment freedoms and serves its readers as an information

vehicle and the most trusted voice for African Americans in Houston and

throughout the southern region. (4CR8950).

The Media Intervenors and Title Source opposed HouseCanary’s

sealing effort. (4CR8949). The Media Intervenors did so to assert the

public’s interests in accessing the trial exhibits that HouseCanary sought

to retroactively seal. The Media Intervenors argued that HouseCanary

had waived any right to seal the exhibits after allowing their introduction

into evidence and use in open court. And they urged that any attempt to

retroactively seal the exhibits would violate the First Amendment and

Texas law and prevent news organizations from fully informing the

public about this important case. (4CR8951).

On May 11, 2018, the trial court properly denied HouseCanary’s

motion from the bench. (4CR8949, 9288).

E. HouseCanary Seeks “Reconsideration,” Asserting New Arguments for Retroactive Sealing of a Smaller Number of Exhibits.

One day after the trial court denied its motion to retroactively seal

trial exhibits under Rule 76a, HouseCanary filed what it styled a motion

12

for “reconsideration” that was, in reality, a complete reinvention of its

position. (4CR9305). HouseCanary abandoned its arguments as to 22 of

the trial exhibits, focusing solely on the eight Exhibits it alleged

contained the “most sensitive [trade] secrets.” (4CR9272).

HouseCanary also changed its legal justification for sealing.

Despite its earlier admission that the Exhibits were subject to Rule 76a

and its presumption that court records remain “open to the public”

(4CR8810), HouseCanary asserted that it was not “renew[ing] [any]

challenge under Rule 76a.” (4CR9278). Instead, it moved for

“reconsideration” solely on a new ground: the secrecy preservation

section of TUTSA. HouseCanary argued for the first time that this

provision “supplant[ed]” Rule 76a, upon which its initial sealing motion

was based (4CR9273, citing TEX. CIV. PRAC. & REM. CODE § 134A.007(c)),

simply because HouseCanary had “alleged” that trade secrets were

involved. Specifically, HouseCanary argued that TUTSA reversed the

“presumption” against sealing, converting Rule 76a’s “presumption of

openness” into a “presumption” of secrecy. Accordingly, even though

HouseCanary had made no attempt to explain what trade secrets were

implicated, or why sealing the Exhibits in their entirety was necessary

13

to shield trade secrets from disclosure (4CR9272, 9274), HouseCanary

argued that it had an automatic right to a retroactive sealing order to

protect these alleged trade secrets and no “balancing” of private and

public interests was required. (4CR9274). And HouseCanary made no

effort to obey either the substantive or procedural requirements of Rule

76a.

Both Title Source and the Media Intervenors opposed

HouseCanary’s renewed effort. The Media Intervenors explained that

TUTSA’s protections did not displace Rule 76a’s rules for sealing orders.

(4CR9306-08). The Media Intervenors further asserted that any attempt

at retroactive sealing would be inconsistent with their First Amendment

right to access exhibits in the court’s file—which have historically

remained public even after the trial has ended. (4CR9306-08).

F. The Trial Court Orders Certain Trial Exhibits Sealed and Prohibits Dissemination of Sealed Materials.

Despite Title Source’s and the Media Intervenors’ opposition, the

trial court issued an order on July 3, 2018 (the “Sealing Order”)

“pursuant to Tex. Civ. Prac. & Rem. Code § 134A.001 et seq.,” specifying

that HouseCanary’s eight asserted “Core Trade Secret Exhibits” “shall be

sealed in their entirety.” (4CR9430). The trial court also ordered

14

references to the eight “Core Trade Secret Exhibits” be redacted in six

other exhibits not mentioned in HouseCanary’s reconsideration motion,

PX108, PC345, DC101, DC136, DX421, and DX828 (the “Six Additional

Exhibits”). Id. Notably, HouseCanary did not even request any relief

from the trial court related to the Six Additional Exhibits.

As stated in the Sealing Order, the trial court determined that

these “exhibits contain[ing] ‘trade secrets’” should be redacted “because

they contain information, in whole or in part, from the Core Trade Secret

Exhibits.” (4CR9430). The Sealing Order further stated that “the Court

issues a protective order that is similar in form to the protective orders

previously signed and entered in this case” and that it “applies to all

persons . . . who receive actual notice of this Order by personal service,

verbal or written notice, or otherwise.” (Id.). This appeal followed.

G. The Court of Appeals Reverses the Sealing Order.

The Fourth Court reversed the Sealing Order in a memorandum

opinion. Mem. Op., at *6, *10. It “determine[d] that Rule 76a applied to

HouseCanary’s request to seal the exhibits at issue because the [SPO]

mandates the use of Rule 76a.” Id., at *6. The court held that

HouseCanary could not demand retroactive sealing of exhibits it had

15

entered into evidence during a public trial, because HouseCanary had

failed to follow the procedures in Rule 76a to obtain a sealing order, and

“[i]t is undisputed that the trial court did not apply Rule 76a when it

decided HouseCanary’s motion to reconsider whether to seal the exhibits

at issue.” Id., at *9. The court therefore concluded that “[t]he trial court

abused its discretion by sealing the exhibits at issue without applying the

Rule 76a standards and procedures.” Id.

The court of appeals’ conclusion that Rule 76a’s standards and

procedures were applicable to HouseCanary’s sealing effort did not, as

HouseCanary contends, flow from any holding about the “interplay”

between Rule 76a and TUTSA. (Pet. Br. 15.) Nor did that conclusion

result from any “conflict” between the two, (id.) or any conclusion about

whether one “supplants” the other. Mem. Op., at *3-4.

The court of appeals’ decision was instead based entirely on well-

settled “contract principles” applied to the SPO, the enforceability of

which “HouseCanary does not dispute.” Id., at *6. The court of appeals

concluded that the parties had determined in the SPO “the procedures

and standards that apply when a party seeks permission from the trial

16

court to file material under seal,” and held that “[t]he SPO mandates the

use of Rule 76a”—even for sealing requests made “at trial.” Id., at *6, *8.

The court of appeals also concluded “TUTSA does not override the

SPO,” it facilitates it. Id., at *6. This is because, as the court explained,

“Section 134A.006(a) of TUTSA,” cited in the first line of the SPO,

provides that a “court shall preserve the secrecy of an alleged trade secret

by reasonable means,” and “[t]here is a presumption in favor of granting

protective orders.” Id., at *9 (citation omitted). The court of appeals

determined that is exactly what the trial court did here when it

“implemented section 134A.006(a) through” the SPO: It “acted on the

presumption in favor of granting protective orders by granting a

protective order.” Id.

For these reasons, the court of appeals concluded that the trial

court reversibly erred “when it ignored the [SPO] and ordered exhibits

sealed without application of the Rule 76a standards and procedures”

referenced therein. Id., at *9 (emphasis added).

17

SUMMARY OF ARGUMENT

The court of appeals correctly set aside the Sealing Order based on

its findings that: (1) HouseCanary failed to comply Rule 76a, as required

by the SPO; and (2) TUTSA does not conflict with the SPO.

Those decisions were entirely correct and present no issue

deserving further review. The court of appeals’ decision to set aside the

Sealing Order was based entirely on HouseCanary’s undisputed failure

to comply with the Rule 76a standards and procedures that the SPO

unambiguously requires, and to which HouseCanary had voluntarily

agreed. The interpretation of that protective order, which is unique to

the parties in this case, presents no legal issue of larger significance to

the jurisprudence in the state.

Because this case is properly resolved on the basis of the SPO—and

only the SPO—this case in no way involves the manufactured “conflict”

that HouseCanary urges between Rule 76a and TUTSA—a purported

conflict that the Fourth Court expressly declined to address. And if the

Court were to entertain HouseCanary’s argument asserting such a

conflict, it should still affirm the court of appeals’ judgment. This is

because no such conflict exists: Rule 76a and TUTSA simply do different

18

things: Rule 76a covers sealing orders; TUTSA covers protective orders.

Rule 76a’s requirements would thus govern HouseCanary’s request for

sealing at issue in this case even in the absence of the SPO. TUTSA would

not govern. HouseCanary’s undisputed failure to follow those

requirements is fatal to its sealing effort, and cannot overcome Rule 76a’s

presumption of openness.

Additionally, the First Amendment would independently require

affirmance of the court of appeals’ opinion and the rejection of

HouseCanary’s misguided retroactive sealing demand. This Court should

therefore reaffirm the long tradition of public access to judicial records

dictated by the First Amendment and find that a presumption of

openness applies under the United States Constitution and the Texas

Constitution. The presumption of openness requires that any attempt to

seal exhibits that have been publicly entered into evidence be subject to

heightened scrutiny. HouseCanary’s inadequate effort to demonstrate

any need—let alone a compelling one—for sealing exhibits that have been

entered into evidence and discussed in open court does not approach

satisfying that standard.

19

ARGUMENT

I. THE COURT OF APPEALS CORRECTLY HELD THAT THE TRIAL COURT

ABUSED ITS DISCRETION IN ENTERING THE SEALING ORDER.

The court of appeals correctly determined that the entry of the

Sealing Order was an abuse of discretion because HouseCanary failed to

comply with the requirements of the SPO. The SPO comprehensively

addressed the parties’ sealing obligations and required compliance with

Rule 76a’s procedural and substantive requirements. There is no dispute

that HouseCanary failed to comply with the standards to which it agreed

in the SPO, and the court of appeals correctly concluded that this failure

was ultimately fatal to its sealing request. That holding was entirely

correct, and entirely unique to these parties and the facts of this case,

presenting no broader jurisprudential principle deserving of this Court’s

attention.

A. The Court of Appeals Correctly Held that the SPO Incorporated Rule 76a’s Procedural and Substantive Sealing Standards, Which HouseCanary Did Not Follow.

HouseCanary bills this case as raising “an important question of

first impression” about the interplay between TUTSA and Rule 76a, on

the issue of records-sealing in trade-secret cases and supposed “conflicts”

between the rights and obligations imposed by each. (Pet. Br. 15). But

20

that framing focuses on a holding the court of appeals did not make. The

court saw no need to consider how TUTSA interacts with Rule 76a, and

it certainly found no “conflict” between them.6

Instead, the court of appeals’ conclusion that the trial court erred

in sealing the Exhibits flowed directly from the plain language of the

SPO. The SPO required the parties to comply with Rule 76a’s standards

for any materials the parties wanted to file under seal. Mem. Op., at *10.

The parties made no exception in the SPO for alleged trade secrets or for

filing at trial. It is undisputed that the parties agreed to the SPO and

the trial court signed the order.

The court of appeals’ determination that “TUTSA does not override

the SPO” was also entirely correct. Mem. Op., at *6. As the court of

appeals noted, the SPO vindicates, rather than violates, TUTSA’s

requirements that trial courts protect trade secrets. The court explained

6 Indeed, the court of appeals did not even address whether TUTSA curtails the Supreme Court’s rulemaking authority to enact procedural and substantive sealing requirements like Rule 76a, as HouseCanary claims. (Pet. Br. 14–15, quoting Mem. Op., at *9). The court considered that issue solely in the context of HouseCanary’s contention that TUTSA supplanted Rule 76a’s right of interlocutory appeal—a contention HouseCanary has now abandoned. (Br. of Appellee at 22, No. 04-18-00844-CV). And it specifically emphasized that it was “tak[ing] no position on whether” TUTSA “conflict[ed] with the Rules on other matters” outside of those interlocutory appellate rights. Mem. Op., *4.

21

that “Section 134A.006(a) of TUTSA” cited in the first line of the SPO,

provides that a “court shall preserve the secrecy of an alleged trade secret

by reasonable means,” and “[t]here is a presumption in favor of granting

protective orders.” Id., at *9 (citation omitted). The court of appeals

determined that is exactly what the trial court did here when it

“implemented section 134A.006(a) through” the SPO; it “acted on the

presumption in favor of granting protective orders by granting a

protective order.” Id.

The court of appeals also properly rejected HouseCanary’s claims

that matters related to sealing trial exhibits are beyond the SPO’s scope.

HouseCanary argued below that it was not required to comply with Rule

76a with respect to the Exhibits because: (1) the SPO did not apply

beyond discovery; and (2) the SPO did not apply to requests to seal trial

exhibits because a party “offers” rather than “files” evidence. As the court

of appeals correctly determined, the SPO applied at trial because it

expressly states that it governs proceedings “through the conclusion of

[the] litigation.” Mem. Op., *6-7. The court of appeals was likewise correct

to reject HouseCanary’s contention that the SPO’s provisions for “filing”

documents do not apply to “offer[ing] them at trial.” Id. Material is “on

22

file” after exhibits are introduced and filed by the court reporter with the

court clerk, as they were in this case. See Lance v. Robinson, 543 S.W.3d

723, 733 (Tex. 2018); Mem. Op., at *8 (explaining that once “the evidence

is admitted, the court reporter files the evidence with the clerk of court”)

(emphasis added).

And HouseCanary fares no better in its attempt to claim that the

trial court “modif[ied]” the SPO’s provisions (Pet. Br. 33)—an argument

that was never raised below, and which conflicts with the undisputed fact

that the trial court never even entertained, much less approved, any

modification to the sealing order.

In short, the court of appeals correctly exercised its discretion in

determining that the trial court erred by failing to apply Rule 76a (as

required by the SPO) in granting HouseCanary’s motion to seal. See

Chandler v. Hyundai Motor Co., 844 S.W.2d 882, 885 (Tex. App.—

Houston [1st Dist.] 1992, no writ) (“Rule 76a does not reserve discretion

to the trial court whether to comply with its provisions.”); see also Gen.

Tire, Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998) (Rule 76a sealing

orders are reviewed for abuse of discretion). The court of appeals’ decision

should therefore be affirmed.

23

B. HouseCanary Cannot Satisfy Rule 76a’s Sealing Standards.

Despite what HouseCanary suggests (Pet. Br. 30), there is no

question that HouseCanary failed to follow Rule 76a’s procedures, as the

SPO required, at any point with respect to the Exhibits, including when

it moved the trial court to reconsider whether to seal the Exhibits.

HouseCanary brought its reconsideration motion solely under TUTSA.

HouseCanary failed to post public notice pursuant to Rule 76a(3), failed

to have a hearing on the motion to seal in open court pursuant to Rule

76a(4), and failed to obtain an order sealing the Exhibits pursuant to

Rule 76a(5), among other things. Nor did HouseCanary make any

attempt to satisfy Rule 76a’s substantive sealing requirements.

HouseCanary did nothing to demonstrate that it had any “serious and

substantial interest” in sealing that could overcome Rule 76a’s

“presumption of openness.” Rule 76a(1). Rather, HouseCanary simply

claimed an “automatic” right to sealing under TUTSA.

That is because HouseCanary knew it could not satisfy the

requirements. Rule 76a does not permit retroactive sealing of documents

that have already been entered into evidence in open court—because, as

courts in Texas applying Rule 76a (and courts around the country

24

applying similar standards) have held, parties have no “serious and

substantial interest,” (Rule 76a(1)(a)), in sealing documents that are

already public.

The Fourteenth Court of Appeals, for example, denied a request to

seal documents under Rule 76a after they were publicly filed. In

Environmental Procedures, Inc. v. Guidry, the court held that an

appellee waived its right to seal documents under Rule 76a when the

documents were publicly filed in the court of appeals. See Envtl.

Procedures, Inc. v. Guidry, 282 S.W.3d 602, 636 (Tex. App.—Houston

[14th Dist.] 2009, pet. denied). The court was especially concerned with

the long delay between when the appellants (with the appellee’s

knowledge) “asked the district clerk to file these unsealed court records”

and when the appellee finally sought to have those records sealed. Id.

(noting that the unsealed documents had been on file with court of

appeals for more than four months); see also Stroud Oil Props., Inc. v.

Henderson, No. 2-03-003-CV, 2003 WL 21404820, at *3 (Tex. App.—Fort

Worth June 19, 2003, pet. denied) (mem. op.) (holding that appellees

failed to show a specific, serious, and substantial interest under Rule 76a

in sealing record containing information they contended was protected

25

by attorney-client privilege when information was disclosed in open

court).

Courts around the country have also repeatedly rejected attempts

to seal evidence that was admitted during an open proceeding. In a case

with facts similar to this case, Littlejohn v. BIC Corp., the Third Circuit

rejected the defendant’s argument that public disclosure of exhibits

introduced at trial could be sealed because the defendant had relied on a

promise of confidentiality in a protective order. See Littlejohn v. BIC

Corp., 851 F.2d 673, 680 (3d Cir. 1988). The Third Circuit noted that the

defendant had failed to raise the issue of confidentiality when the

defendant became aware, before trial, of the plaintiff’s intent to use

confidential documents at trial, and had failed to object when the exhibits

were referenced during trial or entered into evidence. Id. The court

stated: “It is well established that the release of information in open court

‘is a publication of that information and, if no effort is made to limit its

disclosure, operates as a waiver of any rights a party had to restrict its

future use.’” Id. (quoting Nat’l Polymer Prods. v. Borg-Warner Corp., 641

F.2d 418, 421 (6th Cir. 1981)).

26

Other federal courts have similarly rejected attempts to

retroactively seal records that have been introduced into evidence or

otherwise used at a public trial. See, e.g., Weiss v. Allstate Ins. Co., No.

06-3774, 2007 WL 2377119, at *5 (E.D. La. Aug. 16, 2007) (declining to

place under seal exhibits that “were made a part of the public record at

trial, nearly four months ago, without objection by any party”); Rambus,

Inc. v. Infineon Techs. AG, No. Civ. A. 3:00CV524, 2005 WL 1081337, at

*3 (E.D. Va. May 6, 2005) (finding common law right of access to

demonstrative exhibits was not overcome when exhibits were used at

hearing and tendered to court for use in deciding dispositive motions).

Notably, federal courts in Texas have refused to claw back records that

were publicly filed in order to place them under seal. See Dickey’s

Barbecue Pit, Inc. v. Neighbors, No. 4:14-CV-484, 2015 WL 13466613, at

*3 (E.D. Tex. June 5, 2015) (“T]he court will not allow exhibits that have

already been made part of the public record to remain sealed.”); Elbertson

v. Chevron, U.S.A., Inc., No. H10-0153, 2010 WL 4642963, at *2 (S.D.

Tex. Nov. 9, 2010) (refusing to seal court records after settlement and

stating that “when, as here, the public has already had access to

documents, that is a factor weighing in favor of continued public access”).

27

HouseCanary has never confronted this unbroken line of authority.

Instead, it attempts to overcome the irresistible conclusion that the

Exhibits became public after their disclosure in open court by inventing

a “quarantine[ing]” order that simply does not exist. (Pet. Br. 20).

HouseCanary never requested such an order, and there is no evidence

any such order was ever entered, or what its precise terms might be.

In attempting to prove otherwise, HouseCanary plucks out of

context a few sentences from the hearing on its motion to reconsider. But

these statements never refer to the trial court’s treatment of exhibits

during the trial. They refer only to its treatment of media requests to

view exhibits after the trial concluded. And when the trial court said it

was resisting disclosing exhibits because it was “not in a position to figure

out what I think should be sealed and shouldn’t be sealed,” that was not

a suggestion that there had been an order throughout the case that sealed

all the exhibits during trial.7 Rather, the trial court was acknowledging

that there were sealing orders entered by other judges in the case, and

the court did not want to disclose anything until it determined if those

7 Indeed, such an order would have been violated when the Exhibits were discussed in an open courtroom without any protection against public disclosure.

28

other, actual orders covered the exhibits. (Pet. Br. App. C at 33-34).

Indeed the court recognized that some of the trial exhibits should be

available to the public: “[I]t’s not that I’m intentionally not letting people

see things that should be accessible to the public, but there’s– again, up

until today, there has been a true open question to me about what is

covered [by the previous orders] and what’s not . . . .” (Id. at 36).

Yet even if HouseCanary had presented any evidence of an order

throughout trial that sealed exhibits, this order would have also been

subject to Rule 76a. And an unwritten order, of unspecified terms,

entered without notice or opportunity for the public to be heard, and

without any evidentiary showing of the interests the order would protect

could never comply with Rule 76a’s requirements.

In sum, the court of appeals was entirely correct to conclude that

HouseCanary’s sealing request was procedurally and substantively

defective, on the terms that the parties had agreed would govern such

sealing requests. And that basic failure means this case presents no

consideration of the “trial court’s application of TUTSA’s mandate.” (Pet.

Br. 15.) And if it involves the “precise strictures of Rule 76a,” it is only

because HouseCanary agreed to abide by those strictures. (Id.) It is

29

therefore an issue of importance only to the parties, and not one that will

develop the jurisprudence of the state.

C. Nothing in TUTSA Supplants Rule 76a.

The court of appeals did not need to address any “interplay”

between TUTSA and Rule 76a because it correctly determined that the

SPO agreed to by the parties required the parties to comply with Rule

76a. But even if the court below were to entertain HouseCanary’s

contention that TUTSA provides HouseCanary an automatic right to

sealing and that TUTSA “supplants” Rule 76a’s procedural and

substantive standards, that contention would be incorrect. Rather,

TUTSA contemplates sealing through Rule 76a—because the Legislature

recognized in crafting TUTSA that Rule 76a applies to all sealing

requests. And there is “conflict” between Rule 76a and TUTSA’s

protections that would cause the latter to supplant the former. See

TUTSA § 134A.007(c). To the contrary, they complement each other.

TUTSA and Rule 76a do different things. Rule 76a provides parties

with a mechanism to obtain a sealing order—to shield exhibits filed in

the court’s record from public view. TUTSA, on the other hand, addresses

the protection of trade secrets through pretrial “protective order[s]”

30

governing the handling of materials exchanged between the parties

during discovery that may never appear in the court’s record.

Texas civil procedure has long maintained a distinction between

sealing orders and protective orders. Protective orders constrain parties’

handling of witnesses and documents during discovery. Originally, they

were governed exclusively by former Rule of Civil Procedure 166b, which

authorized trial courts to issue protective orders to protect sensitive

information, such as trade secrets, during discovery. See Gen. Tire, Inc.,

970 S.W.2d at 523–24 (citing former Rule 166b). The provisions of former

Rule 166b are now incorporated into Rules 192.1–192.7, 193.5, and

195.1–195.7, with Rule 192.6 governing protective orders that limit and

condition discovery to ensure protection against “invasion of personal,

constitutional, or property rights.” TEX. R. CIV. P. 192.6(b)(4). Sealing

orders, on the other hand, have always been covered under Rule 76a, and

have always concerned treatment of documents in “court files” and “court

records,” not discovery.

The Legislature made use of this longstanding distinction when it

crafted TUTSA and limited § 134A.006(a) to “protective orders.” And

there are good reasons why it did so, and why it applied different

31

presumptions to sealing orders and protective orders. It makes sense that

sealing orders are presumptively unavailable, because the public has a

First Amendment right of access to judicial proceedings. See Section II.A.

Thus, a high threshold must be met before the public can be excluded

from those proceedings. And because the presumption against sealing is

ultimately mandated by the First Amendment, it cannot be supplanted

by Section 134A.006, or any other statute—even if Section 134A.006

purported to do so. See Globe Newspaper Co. v. Superior Court, 457 U.S.

596 (1982) (holding that a Massachusetts statute mandating closure of a

trial during testimony of a minor rape victim violates the First

Amendment presumption of access to criminal trials).

It also makes sense to have a presumption in favor of protective

orders in the context of discovery in trade-secret cases. Section

134A.006(a)’s presumption in favor of protective orders alleviates the

burden on parties to prove the existence of trade secrets merely to

exchange information in discovery without risk of its disclosure. Section

134A.006 therefore “provides the ability for aggrieved parties to pursue

their rights in court without fear of having to disclose the very

information they are trying to keep secret.” MARK J. OBERTI, JOSEPH Y.

32

AMHAD & HANNA NORVELL, 2017 Update: Suing or Defending the

Departing Texas Employee, STATE BAR WEBCAST, at 79-80 (2017). And,

generally speaking, the First Amendment presumption of access does not

apply to materials merely exchanged between parties during civil

discovery. See, e.g., Cipollone v. Liggett Group, Inc., 785 F.2d 1108,

1118–20 (3d Cir. 1986) (explaining that the standard for entering

discovery protective order under the Federal Rules of Civil Procedure is

“good cause”).

Accordingly, the different presumptions in TUTSA and Rule 76a do

not make them incompatible, as HouseCanary suggests. (Pet. Br. 20, 26).

Nor do the different showings required by TUTSA and Rule 76a—the

natural consequence of those different presumptions—put them in

conflict. (Pet. Br. 20, 26). The substantive showing Rule 76a requires

poses no barrier to the protection of true trade secrets either, because, as

HouseCanary notes, in an appropriate case, a party could demonstrate

that the protection of its true trade secrets is a “serious and substantial

interest” sufficient to overcome the presumptive right of access. (Pet. Br.

25.) And it likewise makes no difference that TUTSA and Rule 76a

impose obligations on different participants in the litigation process, with

33

TUTSA placing responsibilities “on the court” while Rule 76a’s

responsibilities are imposed “on the party seeking sealing.” To the

contrary, the very fact that TUTSA and Rule 76a focus on different people

simply serves to highlight how they do different things.

Accordingly, every effort HouseCanary makes to generate conflict

between TUTSA and Rule 76a simply serves to reinforce their

compatibility. And because TUTSA and Rule 76a operate in different

spheres, there is no risk that the parade of horribles HouseCanary

advances will come to pass if the court of appeals’ decision is left

undisturbed. Trial courts will not be forced into “assist[ing] . . .

misappropriation,” (Pet. Br. 25), nor will they be rendered “powerless to

seal evidence.” Nor, for that matter, will it become harder for judges to

handle the press of their responsibilities during trial. (Id.) Trade-secrets

cases will proceed as they always have—aided by protective orders that

streamline the discovery process and sealing orders issued consistently

with Rule 76a. Accordingly, maintaining the distinction between

TUTSA’s protections for protective orders and sealing orders will not

harm trade secrets, trade-secret holders, or the trial courts charged with

protecting them.

34

Finally, maintaining the distinction between TUTSA’s protections

for protective orders and sealing orders is the only way to maintain the

constitutionality of TUTSA itself. That is because if TUTSA purported

to overrule the “presumption of openness” grounded in the First

Amendment, it could not survive. See Globe Newspaper Co., 457 U.S. at

607 (overturning a state statute automatically sealing the testimony of

minor victims of sexual assault and holding that, under the First

Amendment, public access may be restricted only on a case-by-case basis

and if closure is necessitated by a compelling government interest and

the denial of access is narrowly tailored to serve that interest).

In sum, Section 134A.006 and Rule 76a work together in harmony.

Both provisions serve different, complementary purposes, and are

carefully crafted to avoid any constitutional conflict. Thus, while TUTSA

may “control” over “[t]he Texas Rules of Civil Procedure” in the event one

“conflicts” with the other, it does not override Rule 76a’s provisions here.

And because HouseCanary disclaimed any intent to rely on Rule 76a and

made no attempt to satisfy its presumption or the balancing between

private and public interests it demands, the Sealing Order should not

have been granted.

35

II. TUTSA NEITHER SUPERSEDES NOR SUPPLANTS THE PRESUMPTION OF

OPENNESS REQUIRED BY THE FIRST AMENDMENT.

The court of appeals’ decision can be affirmed based solely on

HouseCanary’s failure to comply with the express provisions of the SPO.

Separate and apart from such analysis, the court of appeals’ decision is

also correct based on the First Amendment right of access to exhibits filed

in open court. Decades of authority recognize the long tradition of public

access to judicial records and the presumption of openness under both

the United States Constitution and the Texas Constitution. This

presumption requires that any attempt to seal exhibits publicly entered

into evidence are subject to heightened scrutiny.

This right protects public access to judicial records that have

“‘historically been open to the press and general public’” and to which

public access “‘plays a significant positive role in the functioning of the

particular process in question.’” Sullo & Bobbitt, P.L.L.C. v. Milner, 765

F.3d 388, 392–93 (5th Cir. 2014) (per curiam); see also Craig v. Harney,

331 U.S. 367, 374 (1947) (“A trial is a public event. What transpires in

the court room is public property.”).

This constitutional right of access to exhibits is rooted in a long

tradition, “one that predates the Constitution itself.” United States

36

v. Mitchell, 551 F.2d 1252, 1260 (D.C. Cir. 1976). It vindicates both the

“citizen’s desire to keep a watchful eye on the workings of public

agencies,” as well as the news media’s “intention to publish information

concerning the operation of government.” Nixon v. Warner Commc’ns,

Inc., 435 U.S. 589, 598 (1978) (internal citations omitted).

Indeed, this right is essential for the proper functioning of the

judicial system. It enhances the quality and safeguards the integrity of

the fact-finding process, Globe Newspaper Co., 457 U.S. at 606, promotes

both fairness and the appearance of fairness, Press-Enter. Co. v. Superior

Court, 464 U.S. 501, 508 (1984) (“Press-Enterprise I”), plays a cathartic

role by allowing a community to observe the administration of justice, id.

at 508–09, and fosters public trust in the judicial system, Richmond

Newspapers v. Va., 448 U.S. 555, 572 (1980). “As with other branches of

government, the bright light cast upon the judicial process by public

observation diminishes possibilities for injustice, incompetence, perjury,

and fraud.” Littlejohn, 851 F.2d at 678. And HouseCanary has not

demonstrated any overriding reason that could overcome the First

Amendment’s strong presumption that the Exhibits should be available

to the public.

37

A. The Right of Access Applies to Civil Proceedings.

Contrary to what HouseCanary’s contends (Pet. Br. 31-32), the

First Amendment right of access applies to all types of judicial records,

including civil proceedings and associated records and documents. See

Courthouse News Serv. v. Planet, 750 F.3d 776, 786 (9th Cir. 2014)

(“[F]ederal courts of appeals have widely agreed that [the First

Amendment] extends to civil proceedings and associated records and

documents”); see also N.Y. Civil Liberties Union v. N.Y.C. Transit Auth.,

684 F.3d 286, 305 (2d Cir. 2012) (permitting a right of access to

administrative civil infraction proceedings); see also Publicker Indus.,

Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir. 1984) (the First Amendment

secures a right of access to civil proceedings); In re Cont’l Ill. Sec. Litig.,

732 F.2d 1302, 1308 (7th Cir. 1984) (noting a right of access in

shareholder derivative suits); Brown & Williamson Tobacco Corp. v. Fed.

Trade Comm’n, 710 F.2d 1165, 1177 (6th Cir. 1983) (the First

Amendment limits judicial discretion to seal documents in a civil case).

No other federal appellate court has reached a contrary result. In

support of its claim that the First Amendment right of access does not

apply to records from civil proceedings, HouseCanary relies on dicta from

38

a single case from 1985, In re Reporters Committee for Freedom of the

Press, 773 F.2d 1325 (D.C. Cir. 1985) (“In re Reporters Committee”).

(Pet. Br. 32.)8 However, “[t]he D.C. Circuit has neither recognized nor

rejected that the First Amendment affords the public a right of access to

civil proceedings.” In re Guantanamo Bay Detainee Litig., 624 F.

Supp.2d 27, 35 (D.D.C. 2009). In re Reporters Committee held only that

no violation of any First Amendment right of access occurred when a

district court refused to release documents related to summary-judgment

motions after those motions were denied—pre-trial and prejudgment.

773 F.2d at 1339. Not only was the statement by then-judge Scalia

quoted by HouseCanary dicta, but HouseCanary elides key portions of

the quoted language, in which then-Judge Scalia stated: “The principle

[of the First Amendment right of access] has not yet been applied to

access to civil trials (though the Court has perhaps intimated that it

8 HouseCanary also cites Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 n.19 (1984), for the proposition that the U.S. Supreme Court has “recogniz[ed] that access to court records ‘customarily is subject to the control of the trial court.’” (Pet. Br. 32.) The footnote in Seattle Times to which HouseCanary cites concerns discovery materials, not court records filed with a court during judicial proceedings. 467 U.S. 20 at 33 n.19. Indeed, in Seattle Times, the U.S. Supreme Court addressed only the issue of whether parties to civil litigation have a First Amendment right to disseminate, in advance of trial, information gained through the pretrial discovery process. Id. at 22.

39

obtains there, see Richmond Newspapers, 448 U.S. at 580 n. 17, 100 S.Ct.

at 2829 n. 17), much less to access to records in civil trials . . . .” Id. at

1331 (emphasis added). As explained above, since In re Reporters

Committee was decided, courts that have addressed the issue have

recognized that the First Amendment right of access does apply to civil

proceedings and records.

While the Fifth Circuit has never expressly analyzed the

applicability of the First Amendment right of access to civil trials, a

footnote in Doe v. Stegall immediately following the court’s citation of

Richmond Newspapers clearly indicates that the First Amendment right

recognized by the Fifth Circuit derives from the general applicability of

Richmond Newspapers to civil trials:

The Richmond Newspapers case addressed the closure of a criminal trial. The [plurality] opinion by Chief Justice Burger expressly left open the question of the public’s right to attend civil trials, but noted that “historically both civil and criminal trials have been presumptively open.”

Doe v. Stegall, 653 F.2d 180, 185 n.10 (5th Cir. Unit A 1981). As

suggested by this footnote, the Fifth Circuit appears to have “reasoned

implicitly” that the First Amendment guarantees a public right of access

40

to civil trials. See Doe v. Santa Fe Indep. Sch. Dist., 933 F. Supp. 647,

649 (S.D. Tex. 1996) (citing Stegall, 653 F.2d at 185 & n.10).

The First Amendment right of access to civil trials has also been

recognized by Texas state courts. See Tex. Appleseed v. Spring Branch

Indep. Sch. Dist., No. 01-11-00605-CV, 2012 WL 1379649, at *1 (Tex.

App.—Houston [1st Dist.] 2012, no pet.) (recognizing First Amendment

right of access to civil trials). HouseCanary fails to establish why these

authorities are not applicable to this case.

B. The Right of Access Applies to Exhibits In Evidence.

HouseCanary is likewise incorrect to contend that the First

Amendment does not extend to its effort to seal trial exhibits. To the

contrary, the First Amendment right of access has been explicitly held to

apply to exhibits introduced into evidence. See Belo Broad. Corp. v.

Clark, 654 F.2d 423, 427 (5th Cir. 1981) (recognizing that

“[c]onstitutional requirements are fully satisfied by the kind of

untrammeled access to the information” contained within audiotapes

introduced into evidence at trial, since transcripts of the tapes were

prepared and distributed to the press); see also In re Associated Press,

172 F. App’x 1, 4 (4th Cir. 2006) (citing In re Time Inc., 182 F.3d 270, 271

41

(4th Cir. 1999) (finding a First Amendment right of access to exhibits

filed in support of pretrial motions)); Matter of N.Y. Times Co., 828 F.2d

110, 114 (2d Cir. 1987) (stating that First Amendment right of access

applies to exhibits submitted in connection with a suppression hearing);

Matter of Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1309 (7th Cir. 1984)

(recognizing a First Amendment and common law right to access

document submitted into evidence in open court).

Public access to documents filed in connection with judicial

proceedings, including exhibits, promotes the same vital First

Amendment interests as access to the proceedings themselves. This is

because judicial records “are often important to a full understanding of

the way in which ‘the judicial process and the government as a whole’ are

functioning.” Associated Press v. U.S. Dist. Court, 705 F.2d 1143, 1145

(9th Cir. 1983) (quoting Globe Newspaper Co., 457 U.S. at 606). The

interests served by public access to judicial records do not diminish after

a trial has concluded. To the contrary, as the Third Circuit has noted,

“[a]t the heart of the Supreme Court’s right of access analysis is the

conviction that the public should have access to information[.]” United

States v. Antar, 38 F.3d 1348, 1360 (3d Cir. 1994). Openness is thus

42

“ongoing”; it is “a status rather than an event.” Id. Indeed, the leading

Supreme Court cases recognizing and applying the First Amendment

right of access to judicial proceedings all address access to proceedings

that had long since concluded. See, e.g., Press–Enterprise I, 464 U.S. at

504 (finding First Amendment right of access to transcript of voir dire

proceedings that petitioner had sought after voir dire had concluded and

the defendant had been convicted and sentenced); Press–Enter. Co. v.

Superior Court, 478 U.S. 1, 4 (1986) (Press-Enterprise II) (finding First

Amendment right of access to transcript of a preliminary hearing sought

after the hearing had concluded); Richmond Newspapers, 448 U.S. at 563

(finding First Amendment right of access to a criminal trial that had

“long since ended”); Globe Newspaper Co., 457 U.S. at 602–03 (striking

down as violative of the First Amendment a Massachusetts statute that

required the exclusion of the press and general public during the

testimony of a minor victim in a sex-offense trial, even though trial at

issue had concluded).

Accordingly, this case is very different from Dallas Morning News

v. Fifth Court of Appeals, 842 S.W.2d 655 (Tex. 1992), upon which both

HouseCanary and the trial court extensively relied. (Pet. Br. 34.) In that

43

case, newspapers and public access organizations claimed “an absolute

right” under the First Amendment “to immediate physical access to

inspect and copy any and all exhibits in the underlying trial of the case”—

including documents that Upjohn, their owner, alleged to contain “trade

secrets and confidential business information.” 842 S.W.2d at 657, 659.

HouseCanary is wrong when it states that the exhibits at issue in that

case were “admitted . . . at trial.” (Pet. Br. 34.) They were not. After the

trial court refused a pretrial request to seal the exhibits, “the court of

appeals issued a temporary order limiting disclosure to those persons

involved in preparing the case for trial” while it considered the Upjohn’s

appeal of the trial court’s refusal to seal. 842 S.W.2d at 657 (emphasis

added). Thus, unlike HouseCanary, see Section I.B., infra, the trade-

secret holder in Dallas Morning News took steps before disclosure to

protect its alleged trade secrets. Furthermore, Media Intervenors claim

nothing like the “absolute” right of access to judicial records that

members of the press sought in Dallas Morning News; they seek access

to exhibits that were entered into evidence in open court—exhibits to

which the First Amendment’s presumption of access applies and has not

been overcome. Dallas Morning News is inapplicable.

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C. Trade Secrets Are Not Automatically Excluded from the Right of Access Requirement.

Nor does the mere fact that the Exhibits involve trade secrets make

the First Amendment inapplicable, as HouseCanary contends. (Pet. Br.

32.) On the contrary, the First Amendment right of access applies to all

exhibtis, and can be overcome “only by an overriding interest based on

findings that closure is essential to preserve higher values and is

narrowly tailored to serve that interest.” Press-Enter. I, 464 U.S. at 510.

HouseCanary contends that trade secrets are automatically an exception

to the constitutionally mandated right of access that automatically

overcomes the presumption of openness. While it is true that the

preservation of trade secrets might justify the exclusion of the public from

at least some segments of a civil trial, exclusion is not automatic or

absolute, as HouseCanary proposes.

HouseCanary cites nothing to the contrary. (Pet. Br. 33.) Each of

the cases it cites either involved trade secrets that had actually been kept

secret, or did not address the impact of public disclosure on the ability to

obtain an order sealing records allegedly containing trade secrets. See

Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589,

593–94 (6th Cir. 2016) (not addressing impact of public disclosure of

45

trade secrets on sealing, which was not at issue); Baxter Int’l, Inc. v.

Abbott Labs., 297 F.3d 544, 546, 548 (7th Cir. 2002) (denying a motion to

seal court records where the parties’ joint motion “made no effort to

justify the claim of secrecy” and noting that the parties did not “contend

that any document contains a protectable trade secret”).

And In re M-I L.L.C., 505 S.W.3d 569 (Tex. 2016), on which

HouseCanary places particular emphasis, is particularly inapposite.

That is because In re M-I L.L.C. never actually confronted any First

Amendment arguments—the parties did not raise any. And even as In

re M-I L.L.C. recognized that reasonable limitations on access may be

imposed to protect certain interests, such as the preservation of trade

secrets, those limitations must be “balance[ed]” against due process and

the presumption of openness. Id. at 577. Accordingly, it is no authority

for the idea that trade secrets somehow stand outside that balance. In re

M-I L.L.C. also recognizes that while those reasonable limitations may

take many forms, including granting protective orders similar to the SPO

to provide the parties an opportunity to preserve their trade secrets,

those protections are not automatic. See id. at 578. It remains the

parties’ obligation to comply with any protective order issued by the court

46

to protect trade secrets. Because HouseCanary failed to do so in this case,

the court of appeals correctly set aside the trial court’s Sealing Order.

HouseCanary nevertheless contends that it did not waive trade

secret protection because the Exhibits were not “on file,” nor “made

public.” Under Texas law, however, documents that are offered and

admitted in open court are “on file.” See Robinson, 543 S.W.3d at 733

(determining material is “on file” after exhibits were introduced at a

preliminary injunction hearing and filed by court reporter with court

clerk); see also Stark v. Morgan, 602 S.W.2d 298, 304 (Tex. App.—Dallas

1980, writ ref’d n.r.e.) (holding exhibit “offered” at prior temporary

injunction hearing was “on file with the court”). Thus, documents that

are “on file” and not sealed are part of the court’s public record. See id.

Under Texas law, the documents that are the subject of the trial

court’s Sealing Order were “on file” and, as explained supra, they were

not sealed at the time they were admitted in open court, or anytime

thereafter. HouseCanary’s public filing of the Exhibits renders it

impossible for HouseCanary to now demonstrate that sealing is essential

to preserve any values that may be higher than the First Amendment

right of access.

47

D. HouseCanary Could Have (But Failed to) Protect Its Trade Secrets In a Manner that Comports with the First Amendment Right to Access By Complying with Rule 76a and the SPO.

The constitutional right of access is embodied in Rule 76a, which is

motivated by the same concerns of access to civil judicial records and the

presumption of openness. See LLOYD DOGGETT & MICHAEL J. MUCCHETTI,

Public Access to Public Courts: Discouraging Secrecy in the Public

Interest, 69 TEX. L. REV. 643, 648–52 (Feb. 1991) (explaining that Rule

76a was motivated by the understanding that greater access to civil

judicial records promotes public health and safety, encourages greater

integrity from attorneys, clients, and judges, and “strengthens

democracy”). Rule 76a(1) sets forth the presumption that court records

are “open to the general public.” And it requires a balancing of public

and private interests before that presumption can be overcome. Rule 76a

provides that exhibits “may be sealed only upon a showing of all of the

following”:

(a) a specific, serious and substantial interest which clearly outweighs:

(1) this presumption of openness;

(2) any probable adverse effect that sealing will have upon the general public health or safety;

48

(b) no less restrictive means than sealing records will adequately and effectively protect the specific interest asserted.

TEX. R. CIV. P. 76a.

Rule 76a(2) defines “court records” as “all documents of any nature

filed in connection with any matter before any civil court,” except for “(1)

documents filed with a court in camera, solely for the purpose of

obtaining a ruling on the discoverability of such documents; (2)

documents in court files to which access is otherwise restricted by law;

[and] (3) documents filed in an action originally arising under the Family

Code.” TEX. R. CIV. P. 76a. As this Court has recognized, “exhibits

introduced into evidence are a fortiori court records.” Dallas Morning

News, 842 S.W.2d at 659.

As explained above, HouseCanary has not and cannot demonstrate

a serious and substantial interest to justify sealing of the Exhibits. See

supra Section I.B. HouseCanary could have avoided this entire issue by

simply complying with the SPO and Rule 76a at the time the Exhibits

were admitted into evidence at trial. HouseCanary’s failure to do so does

not alter the First Amendment right of access or the importance of the

presumption of openness. Because the court of appeals properly

49

recognized and applied these vital constitutional guarantees, the decision

below should be affirmed.

PRAYER

This Court should affirm the decision below setting aside the trial

court’s Sealing Order.

Respectfully submitted,

/s/ Amanda N. Crouch Charles L. Babcock State Bar No. 01479500 cbabcock@jw.com JACKSON WALKER L.L.P. 1401 McKinney Street, Suite 1900 Houston, Texas 77010 (713) 752-4210 (713) 742-4221 – Fax

Joshua A. Romero State Bar No. 24046754 Jromero@jw.com JACKSON WALKER L.L.P. 100 Congress Ave., Suite 1100 Austin, Texas 78701 Tel: (512) 236-2035 Fax: (512) 391-2189

Amanda N. Crouch State Bar No. 24077401 Acrouch@jw.com JACKSON WALKER L.L.P. 112 E. Pecan Street, Suite 2400 San Antonio, Texas 78205 (210) 978-7784

50

(210) 242-4684 – Fax

ATTORNEYS FOR THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS

J. Carl Cecere Bar No. 24050397 ccecere@cecerepc.com CECERE PC 6035 McCommas Blvd. Dallas, Texas 75206 (469) 600-9455

ATTORNEY FOR THE HOUSTON FORWARD TIMES

51

CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of Texas

Rule of Appellate Procedure 9.4(e) because it has been prepared in

conventional typeface no smaller than 14-point for text and 12 point for

footnotes. This document also complies with the word count limitations

of Texas Rule of Appellate Procedure 9.4(i) because if contains 6,452

words, excluding any parts exempted by Texas Rule of Appellate

Procedure 9.4(i)(1).

/s/ Amanda N. Crouch Amanda N. Crouch

52

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Media Intervenor

Respondents’ Brief on the Merits has been served on the following by E-

service, on February 18, 2020:

David M. Gunn State Bar No. 08621600 dgunn@beckredden.com BECK REDDEN LLP 1221 McKinney, Suite 4500 Houston, Texas 713-951-3700 713-951-3720 – Fax Wallace B. Jefferson State Bar No. 00000019 wjefferson@adjtlaw.com ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701 512-482-9300 512-482-9303 – Fax Thomas R. Phillips State Bar No. 00000022 Tom.phillips@bakerbotts.com BAKER BOTTS L.L.P. 98 San Jacinto Blvd., Suite 1500 Austin, Texas 78701 512-322-2500 512-332-2501 - Fax

Max L. Tribble, Jr State Bar No. 20213950 mtribble@susmangodfrey.com Matthew C. Behncke State Bar No. 24069355 mbehncke@susmangodfrey.com Rocco Magni State Bar No. 24092745 rmagni@susmangodfrey.com Bryce T. Barcelo State Bar No. 24092081 bbarcelo@susmangodfrey.com Jonathan J. Ross State Bar No. 00791575 jross@susmangodfrrey.com Joseph S. Grinstein State Bar No. 24002188 jgrinstein@susmangodfrey.com SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002-5096 713-651-9366 713-654-6666 – Fax Ricard Cedillo State Bar No. 04043600 rcedillo@lawdcm.com DAVIS, CEDILLO & MENDOZA, INC. 755 E. Mulberry, Suite 500

53

San Antonio, Texas 78212 210-822-6666 210-822-1151 – Fax

ATTORNEYS FOR APPELLEE, HOUSECANARY, INC.

Catherine M. Stone State Bar No. 19286000 cstone@langleybanack.com LANGLEY & BANACK, INC. 745 E. Mulberry Ave., Suite 700 San Antonio, Texas 78212 210-736-6600 210-735-6889 – Fax Dale Wainwright State Bar No. 00000049 wainwrightd@gtlaw.com GREENBERG TRAURIG, LLP 300 West 6th Street, Suite 2050 Austin, Texas 78701 512-320-7200 512-320-7210 – Fax Helgi C. Walker hwalker@gibsondunn.com GIBSON, DUNN & CRUTCHER, LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5306 202-955-8500 202-530-9595 - Fax

David M. Prichard State Bar No. 16317900 dprichard@prichardyoungllp.com PRICHARD YOUNG 10101 Reunion Place, Suite 600 San Antonio, Texas 78216 210-477-7401 210-477-7450 – Fax Veronica S. Lewis State Bar No. 24000092 vlewis@gibsondunn.com Allyson N. Ho State Bar No. 24033667 aho@gibsondunn.com Andrew P. LeGrand State Bar No. 24070132 alegrand@gibsondunn.com GIBSON, DUNN & CRUTCHER, LLP 2100 McKinney Avenue Dallas, Texas 75201-6912 214-698-3100 214-571-2936 – Fax

Peter S. Wahby State Bar No. 24011171 wahbyp@gtlaw.com Stephanie R. Smiley State Bar No. 24066097 smileys@gtlaw.com

Randy M. Mastro rmastro@gibsondunn.com GIBSON, DUNN & CRUTCHER, LLP 200 Park Avenue New York, NY 10166-0193 212-351-3825

54

Karl G. Dial State Bar No. 05800400 dialk@gtlaw.com Samuel G. Davison State Bar No. 24084280 davisons@gtlaw.com Allison M. Stewart State Bar No. 24102538 stewarta@gtlaw.com GREENBERG TRAURIG, LLP 2200 Ross Avenue, Suite 5200 Dallas, Texas 75201 214-665-3673 214-665-3601 – Fax Jeffrey B. Morganroth State Bar No. P41670 jmorganroth@morganrothlaw.com MORGANROTH & MORGANROTH, PLLC 344 N. Old Woodward Ave. Suite 200 Birmingham, MI 48009 248-864-4000 248-864-4001 - Fax

212-351-5219 – Fax Manuel Pelaez-Prada State Bar No. 24027599 mpp@stormlex.com FLORES & PELAEZ PRADA, PLLC 2221 IH 10 West, Suite 1206 San Antonio, Texas 78257 210-361-0070 210-693-1312 – Fax

ATTORNEYS FOR APPELLANT TITLE SOURCE, INC.

/s/ Amanda N. Crouch Amanda N. Crouch

Automated Certificate of eServiceThis automated certificate of service was created by the efiling system.The filer served this document via email generated by the efiling systemon the date and to the persons listed below:

Brenda Haby on behalf of Amanda CrouchBar No. 24077401bhaby@jw.comEnvelope ID: 40942958Status as of 02/19/2020 07:26:21 AM -06:00

Associated Case Party: Title Source, Inc.

Name

Andrew LeGrand

David E. Keltner

Harriet O'Neill

Jeffrey Morganroth

Ashley Johnson

Randy Mastro

Teresa H.Rodriguez

Veronica Lewis

Manuel Pelaez-Prada

Peter Wahby

Catherine Stone

Andrew LeGrand

David Prichard

Helgi Walker

Allyson Ho

Allison Stewart

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24070132

11249500

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Email

alegrand@gibsondunn.com

david.keltner@kellyhart.com

honeill@harrietoneilllaw.com

jmorganroth@morganrothlaw.com

ajohnson@gibsondunn.com

rmastro@gibsondunn.com

trodriguez@langleybanack.com

vlewis@gibsondunn.com

mpp@stormlex.com

wahbyp@gtlaw.com

cstone@langleybanack.com

alegrand@gibsondunn.com

dprichard@prichardyoungllp.com

hwalker@gibsondunn.com

aho@gibsondunn.com

stewarta@gtlaw.com

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Associated Case Party: HouseCanary, Inc. f/k/a Canary Analytics, Inc.

Name

Robert Dubose

David Gunn

Erin Huber

Wallace Jefferson

Matthew Behncke

Nick Bacarisse

Automated Certificate of eServiceThis automated certificate of service was created by the efiling system.The filer served this document via email generated by the efiling systemon the date and to the persons listed below:

Brenda Haby on behalf of Amanda CrouchBar No. 24077401bhaby@jw.comEnvelope ID: 40942958Status as of 02/19/2020 07:26:21 AM -06:00

Associated Case Party: HouseCanary, Inc. f/k/a Canary Analytics, Inc.

Bryce Barcelo

Joseph Grinstein

Thomas Phillips

Benjamin Geslison

Rocco Magni

Jim Taylor

Kalpana Srinivasan

Ricardo Cedillo

Cathi Trullender

Jonathan Ross

Max Tribble

bbarcelo@susmangodfrey.com

jgrinstein@susmangodfrey.com

tom.phillips@bakerbotts.com

ben.geslison@bakerbotts.com

rmagni@susmangodfrey.com

jtaylor@beckredden.com

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jross@susmangodfrey.com

mtribble@susmangodfrey.com

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Associated Case Party: The Houston Forward Times

Name

J. CarlCecere

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Associated Case Party: The Reporters Committee for Freedom of the Press

Name

Joshua Romero

Charles Babcock

Brenda Haby

Amanda Crouch

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